U.S. Legal Justifications for Nuclear Weapons Fall Flat on Their Face

The definition of legalism is “strict adherence, or the principle of strict adherence, to law or prescription, especially to the letter rather than the spirit.” In an article for the November/December issue of the Bulletin of the Atomic Scientists titled “International humanitarian law and nuclear weapons: Irreconcilable differences” (behind a pay wall), Dean and Jonathan Granoff of the Global Security Institute reveal the extent to which the United States uses this tactic to justify the possession and potential use of nuclear weapons.

By way of introduction, from the article’s abstract:

In 1996, the International Court of Justice issued an opinion that the use of nuclear weapons is “scarcely reconcilable” with international humanitarian law and concluded that nations have an obligation to pursue good-faith negotiations leading to disarmament. The 2010 Nuclear Non-Proliferation Treaty Review Conference reaffirmed the need for all states to comply with international humanitarian law, which governs the use of nuclear as well as conventional weapons. When the rules of war are applied to nuclear weapons, it becomes clear that these weapons cannot comply with international law. The effects of nuclear weapons are inherently uncontrollable and do not meet international criteria for discrimination between military and civilian targets, for proportionality, and for necessity.

The International Court ruling’s weak spot: it “left open the possibility that the use of a nuclear weapon could be legal under extraordinary circumstances.”

Naturally, into that void jumped the United States. “The United States, with a massive nuclear arsenal and a proclaimed deep respect for the rule of law, has put forth eight primary arguments as to why some uses of nuclear weapons could be viable under international law.” Among them:

The argument, as stated by the Granoffs:

The United States argues that the radiation effects of nuclear weapons do not violate the rule that prohibits unnecessary force, because radiation is an “inherent” effect of nuclear weapons, rather than an effect added to cause extra injury to its victims.

The Granoffs’ rebuttal:

This argument has little merit because it is the weapon’s actual effect—not the intent of its designer—that is relevant.

Argument (basically just a way for the United States to attack the above argument from another angle):

The United States argues that the explosive, heat, and blast effects of a nuclear weapon are the primary effects, while radiation is only a “byproduct”. … The 1925 Geneva Protocol [set] forth prohibitions against asphyxiating, poisonous … gases … liquids, materials, and devices. The United States argues that these rules were only intended to cover weapons that kill by inhalation or other means of absorption of poison … and do not apply to nuclear weapons, which kill primarily through explosion.

This is legalizing at it worse. The Granoffs’ rebuttal:

[It shouldn't] matter whether the weapon injures by going into the body or poisons it by other means. Such arguments are designed to defeat the very purpose of international humanitarian law, which is to put limits on the extent and manner of injuries in armed conflicts.

Argument:

The United States argues that, even if it would be unlawful to use nuclear weapons first, a state could properly use them to respond to another state’s use of such weapons in order to terminate unlawful actions.

Rebuttal:

It is implausible that a nuclear weapon could be used in such a manner that is proportionate to the provocation and that meets internationally accepted conditions for lawfulness, which prohibit reprisals against … civilian populations, civilian property and infrastructure, cultural objects and places of worship, objects indispensable to the survival of the civilian population [not to mention] the natural environment.

Argument:

The United States argues that no categorical judgments can be made as to the lawfulness of using nuclear weapons, but rather that each potential use has to be evaluated on its own merits.

Rebuttal (at this point the Granoffs are shooting ducks in a pond):

This position is not tenable because, under current US procedures in crisis conditions, the United States would not have enough time to weigh the legality—let alone the morality—of launching nuclear weapons.

Next, the United States pushes its luck. Argument:

The United States, at times, characterizes the court’s decision in the [1996 International Court ruling] as upholding the lawfulness of the use of, and threat to use, nuclear weapons.

Rebuttal:

This is simply inaccurate. … The only ambiguity was that the court did not determine, based on evidence presented, whether the general illegality of nuclear weapons rules out marginal cases (for example, use in remote areas) and whether the threat or use of nuclear weapons would be lawful or unlawful in all possible cases involving the very survival of a state. The lawyers for nuclear weapon states presented hypothetical uses, such as a low-yield weapon used against a warship at sea, or against enemy troops in a sparsely populated area. While the court’s decision was unclear on some points, it was decisive in stating that a state’s right of self-defense, even in “extreme” circumstances, is always subject to international humanitarian law.

Finally, the unkindest cut of all by the International Court of Justice, which

… concluded that it is unlawful for a state to threaten to do that which would be unlawful [use nuclear weapons]. … This conclusion has significant consequences for nuclear deterrence policy, which is founded entirely on a threat—and is therefore inconsistent with international humanitarian law. The rationale that such a threat is necessary, to ensure that nuclear weapons will never be used, does not rectify the illegality of the threat.

Thus, not only is the possession and use of weapons illegal, but the doctrine of deterrence that justifies their existence.

But, even if its disregard for international institutions has eased since the Bush years, does the United States care about any of this? After all, post-nuclear holocaust, there may not even be a court left standing to prosecute the United States for war crimes. Thus, with the use of nuclear weapons, the United States would not only dethrone the all-time king of war crimes — Nazi Germany — but likely evade the trials to which many Nazis were subjected for theirs.

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